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Divorce Please: Department of Justice says no thank you

Recently a couple has been told they cannot get a divorce in Ontario…because they were never really married?

Two women, who regularly reside in Florida and England, were married in Ontario in 2005.    These women applied to the Ontario Court for a divorce.  A  legal argument filed by the Department of Justice  opposes the couple’s joint application for a divorce.  The Department of Justice argues that the couple cannot get divorced because the places they regularly live do not recognize their marriage as being valid – Florida and England are jurisdictions that do not recognize the validity of same sex marriage.

So what gives?  Is this a politically motivated interpretation of private international conflict law to advance an agenda?

While I feel the argument filed by the Department of Justice is a very strong application of conflict law, there are some valid reasons why a couple (same sex or different sex) might not be able to get a divorce in Canada if they are not resident in Canada (even if they were married in Canada).  For example:

  1. Provincial residency requirements in civil marriage acts can require that one spouse reside in a province for a certain amount of time before applying to that province for a divorce (as a note – I am not aware of a provision requiring you to live in a province for a certain amount of time before getting a marriage in that province); and
  2. Lex loci celebrationis (the Latin term forl aw of the place where the marriage is celebrated) vs. lex loci domicilli (law of the domicile). The rules for the essential validity of a marriage are governed by the laws of the pre-marital domicile and formal validity of the marriage are governed by the location of the celebration. These conflict of law rules apply equally to same sex and opposite sex couples;

Prime Minister Steven Harper has said that he is not re-opening the issue of same sex marriage that was resolved in 2004 by the Supreme Court of Canada’s decision (it was found that the federal government had the authority to amend the definition of marriage to allow all Canadians to marry.

Update January 13, 2012: a statement was issued by the Justice Minister, Rob Nicholson, clarifying that a legislative gap had caused the above noted confusion and that it will be closed:

…I want to make it clear that, in my government’s view, those marriages should be valid…

As reported in the Globe and Mail:

Mr. Nicholson blamed the former Liberal government for the problem, because, when it legalized same-sex marriage, it did not address the fact that the residency requirement was destined to leave thousands of couples unable to divorce. Former Liberal justice minister Irwin Cotler responded that it did not stick out as a serious potential problem.